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The Home Office has published the following information in light of the fact that freedom of movement with the EU has ended and the UK has introduced a points-based immigration system.

It reminds businesses that they now need to register as a licensed sponsor to hire most people living outside the UK and must check that they meet certain job, salary and language requirements.

This does not apply when hiring Irish citizens, or EU citizens already living in the UK by 31 December 2020. They and their family members are eligible to apply to the EU Settlement Scheme and have until 30 June 2021 to make an application. Employers may want to encourage any EU citizens to avail of the settlement scheme.

As a transition measure for the period up to 30 June 2021, employers should continue to accept the valid passports and national identity cards of all EU citizens as evidence of their right to work.

To assist UK businesses who are thinking of recruiting from outside the UK, the Home Office has issued new publications that include:

  • Workforce and Labour Supply Handbook– The Home Office, in partnership with the Association of Labour Providers (ALP), has created this to help employers and providers of contingent labour, understand the new immigration system and ensure compliance with right to work legislation for both existing workers and new recruits.
  • The Right to Work Leaflet– which employers can share to clarify requirements to EU employees provides information for individuals on their rights and obligations depending on when they arrived in the UK.

Become a Licensed Visa Sponsor

If you’re not already a licensed sponsor and you think you’ll want to sponsor workers, for instance, through the Skilled Worker route, the Home Office recommends that you should apply now. Fees apply and allow around 8 weeks for your licence to be processed; for an additional fee, businesses can be fast-tracked to receive a decision within 10 days.

Further information from the Home Office on the points-based immigration system and the available routes is available in the employer immigration guide at GOV.UK

 

 

The Chancellor announced his Budget yesterday, 3 March 2021. Whilst the tax and benefits measures announced in that Budget will apply to all the UK, the spending announcements will only apply in England. For spending, the Northern Ireland Executive is awarded a grant calculated on the basis of the Barnett formula that they can then decide how to use. The grant awarded to Northern Ireland in yesterday’s budget was £410 million.

We have not provided a comprehensive summary below but highlighted a few key points.

Furlough

The headline fact, leaked on the evening before the Budget, was the extension of the Furlough Scheme until 30 September 2021.

All the Furlough Guides have now been updated to reflect this extension. See for example Check which employees you can furlough

The changes made to the Guides reflect the Scheme’s extension.  However, importantly they also provide for an extension to the cut-off date for eligibility. From 1 May 2021 anyone employed on 2 March 2021 can be furloughed.

The Guide states:

“For periods starting on or after 1 May 2021, you can claim for employees who were employed on 2 March 2021, as long as you have made a PAYE Real Time Information (RTI) submission to HMRC between 20 March 2020 and 2 March 2021, notifying a payment of earnings for that employee. You do not need to have previously claimed for an employee before the 2 March 2021 to claim for periods from starting on or after 1 May 2021.”

 Businesses who created and started a PAYE payroll scheme on or before 2 March 2021 are also eligible for periods starting on or after 1 May 2021

HMRC has also published a new paper Changes to the CJRS Scheme from July 2021 setting out how the Scheme will work in July. The paper does not yet cover August and September 2021.

From 1 July 2021, the level of grant will be reduced each month and employers will be asked to contribute towards the cost of furloughed employees’ wages. These contributions are:

  • July: 10% to the hours not worked in addition to the NICs and pension contributions
  • August & September:  20% to the hours not worked in addition to the NICs and pension contributions

 

New information on claim periods from May 2021 has also been added to the sections ‘If your employee is on a fixed term contract’ and ‘Employee transfers under TUPE’

National Minimum Wage (NMW) and National Living Wage (NLW)

From 1 April 2021, the NMW will increase from £8.20 to £8.36 and the NLW will rise from £8.71 to £8.91.

Statutory Sick Pay (SSP)

Small and medium-sized employers in the UK will continue to be able to reclaim up to two weeks of eligible Statutory Sick Pay (SSP) costs per employee from the Government

The Homes Office has now published further guidance for employers on right to work checks for EEA and Swiss nationals during the grace period (1 January – 30 June 2021) which can be viewed here

What it does state is:

Right to work checks for EEA nationals will not change until after 30 June 2021. Until then, EEA nationals can use their passport or national identity card to evidence their right to work. You are not expected to differentiate between EEA nationals who arrived before the end of the transition period (31 December 2020) and those arriving after the grace period from 1 January to 30 June 2021.

From 1 July checks will change, and all EEA nationals will be required to demonstrate they have a right to work through evidence of their immigration status, rather than their nationality, using the online service. There will be a small number of exceptions and these will be detailed in further guidance. New guidance on how to conduct right to work checks on EEA nationals from 1 July will be provided in advance of this date. Irish nationals will continue to have the right to work throughout and prove their right to work as they do now, for example by using their passport.

The Supreme Court has held workers that are required to sleep at or near their place of work are not working for purposes of National Minimum Wage

These Employees were:

  • required to remain on site
  • permitted to sleep and provided facilities to do so
  • but kept listening ear out for emergencies that they must respond to
  • paid a Night Shift allowance of £22.35 and an addition of £6.70 to cover first hour of disturbance.

SC interpreted the NMW laws and the exception with the NMW laws for sleep in working strictly in keeping with the wording and what Parliament intended. That exception only applies if:

  • expected to sleep during Night Shift
  • provided facilities to do so.

The exception would not apply to an Engineer on call who is allowed to nap during his shift but must remain on call.

The full Judgment can be read here

Yesterday (Tuesday 11 May) marked 50 days remaining until the deadline of 30 June 2021 for applications to be made to the EU Settlement Scheme (EUSS).

The Home Office has stated that the 50 day milestone provides an important opportunity for them to work with Businesses to bring the fast-approaching deadline to the attention of eligible EU employees.

All EU, EEA and Swiss citizens and their family members who were resident in the UK by 31 December 2020, are encouraged to apply without delay so that they can continue to work, study, and access free healthcare and benefits in the UK after 30 June 2021.

It is not the responsibility of Businesses to make sure EU employees have applied, but businesses can play a role by reminding employees of the approaching deadline and cascading the information in the employer toolkit available on GOV.UK.

We would also remind you that businesses will not need to carry out retrospective Right to Work Checks on existing employees after the 30 June 2021 deadline. However, from 1 July, new EU, EEA and Swiss employees that you hire will need to demonstrate their right to work either with the pre-settled or settled status, or with a visa under the points-based immigration system.

Businesses must also remember that the new right to work checks (see our previous circular) comes into force in less than a week, 17 May 2021. These new checks will be one of the topics being discussed at our Annual Employment Law and HR Conference on 10 June 2021.

We have received queries from a number of Member Companies regarding their obligations in relation to EU Settlement Scheme; in light of this we have put together this short explanatory note.

The deadline for workers applying to the Scheme is 30 June 2021. Any EU worker who wishes to apply must do so before then.

You should be aware that your employees are not obliged to inform you that they have applied to the Settlement Scheme, nor are they obliged to inform you of the outcome of any application.  Similarly, you should not check if an employee has applied.

It is also very important to note that an offer of employment, or continued employment, cannot be made dependent on an individual having made an application to the EU Settlement Scheme.

There is no legal obligation on employers to inform their employees about the EU Settlement Scheme. However if you employ EU workers it is sensible to raise awareness of the Scheme in your workplace and you may find the EU Settlement Scheme Employers Toolkit helpful.

When raising awareness, you must take care not to discriminate against EU citizens. We therefore recommend that your raise awareness generally across the whole workplace.  When raising awareness, you should be careful not to go further and provide immigration advice to employees unless you are qualified to do so.

Finally there is no, and will be no, requirement for employers to conduct any retrospective checks on the right to work of existing workers. The previous right to work checks conducted when the individual commenced work will remain valid. There will however be a change in respect of the right to work checks conducted on new recruits commencing employment after 30 June 2021.

With Portugal unexpectedly moving from the Green to Amber list of countries from 4am on 8 June, it may affect your employees’ planned return to work.

Communication:

Businesses should have clearly communicated to employees before their holiday the approach they will take if the employee is required to quarantine on return. This ensures that employees knew the rules prior to leaving and what will happen on their return.

If your business has not clearly communicated its position this may influence how you deal with the situation this time i.e. with employees returning from Portugal (see below).

We recommend your business clearly communicates the approach it will be taking over the summer months. This should include what will happen if employees go abroad and the country they are in changes listing unexpectedly.

Unless you had clear rules and previously communicated your position in advance of their holiday, you may choose to deal with employees returning from Portugal in a more sympathetic way.

In terms of the quarantine period, you could consider the following:

Work from Home:

Can you facilitate the employee working from home during the quarantine period?

Annual Leave:

Does employee have annual leave they could use for some/all of the quarantine period?

Unpaid/Authorised Absence:

Can you facilitate the employee taking unpaid leave and will this be on an authorised basis?

Disciplinary Action:

If you have not communicated your approach in advance, it may be difficult for your business to take any stronger action against the employee. If you are considering disciplinary action, then we recommend you first speak to the Legal Team.

If you do have clear rules that have been communicated then disciplinary action may be reasonable. However, your business might decide to distinguish between:

  • Employees who knowingly have travelled to an Amber Country when they knew they were expected back at the workplace and;
  • Employees who travelled to a Green Country and the country unexpectedly changed.

What is clear is that you should not allow, or even encourage, any employee required to quarantine to attend the workplace.

The Home Office has confirmed a further extension on the modified right to work checks as a result of covid; this is unsurprising given the delay in further relaxations to the current restrictions.  They have confirmed that the temporary relaxation on face to face checks made on 30 March 2020 will now remain in place until 31 August 2021 (inclusive) 

Members should also note that the Home Office previously confirmed they have abandoned the requirement to carry out retrospective checks.

Therefore, Members do not need to go back through their employees recruited in period 30 March – 31 August 2021 to do any further checks. The updated Guidance can be accessed on this link: Advice for employers carrying out right to work checks during the coronavirus pandemic.

On 28 June 2021, the EU confirmed that it had formally approved the EU Adequacy Decision for the UK.

This is good news for Member organisations who transfer personal data from the Republic of Ireland or any other EU (EEA) States to Northern Ireland, as the decision means that:

  • UK is no longer treated as a third country;
  • Personal data can now flow freely from EU to UK, as the EU has found that the UK offer an essentially equivalent level of protection to that guaranteed under EU law.

Earlier this year the UK recognised EEA Member States as having ‘adequate protection’ for personal data, therefore personal data can also be transferred from the UK to the EU without businesses having to apply additional safeguards.

For the first time ever in its Adequacy Decision, the EU have included what is known as a ‘sunset clause.’ This clause limits the duration of the Adequacy Decision to four years, after which it will automatically expire.  At that stage, the EU will then review it and will only renew the Adequacy Decision if the UK continues to ensure an adequate level of data protection.  Consequently it will be important for the UK to keep pace with any changes to Data Protection rules in the EU.

Member organisations should of course ensure that Privacy Notices and relevant GDPR documentation identify if personal data is being transferred outside the country, and provide other necessary details such as where it is being transferred, how it will be used, stored and who will have access etc.

The Adequacy Decision can be accessed here and the announcement here.

As Members will be aware, on 1 July 2021 the process for completing right to work checks changed.

With the exception of Irish citizens, from 1 July 2021 employers are no longer able to accept EU passports or ID cards as valid proof of right to work for new staff.

Instead, employers must conduct an online check for job applicants who hold digital proof of their immigration status in the UK (known as an eVisa). This applies to most EU citizens, including those with settled or pre-settled status, those with a Hong Kong BNO visa and some other nationalities who have moved to the UK more recently under the points-based immigration system.

A manual check can be completed for UK and Irish nationals who can use their passport, or other identity document, as proof of their right to work. Employers will also need to complete a manual check for individuals in the UK who cannot prove their immigration status online.

We would remind Members that you do not need to retrospectively check the status of any EU, EEA, or Swiss citizens you employed before 1 July 2021.

The Home Office has now developed a right to work check video which can be accessed HERE

This video guides you through the new right to work check process, including details of applicant information required for both types of check and links to further information.